D. Smitherman v. Bayview Loan Servicing, L.L.C., e, No. 16-20328 (5th Cir. 2017)
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The court issued a subsequent related opinion or order on March 29, 2017.
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Case: 16-20328 Document: 00513831480 Page: 1 Date Filed: 01/11/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-20328 United States Court of Appeals Fifth Circuit FILED D. PATRICK SMITHERMAN, January 11, 2017 Plaintiff - Appellant Lyle W. Cayce Clerk v. BAYVIEW LOAN SERVICING, L.L.C., Defendants - Appellees Appeal from the United States District Court for the Southern District of Texas USDC No. 4:16-CV-798 Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* D. Patrick Smitherman, proceeding pro se, brought suit against Bayview Loan Servicing, LLC in Texas state court, alleging various state law claims regarding foreclosure proceedings related to Smitherman’s mortgage loan. Bayview removed to federal court under a diversity jurisdiction theory. The district court denied Smitherman’s motion to remand and then dismissed Smitherman’s claims with prejudice. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 16-20328 Document: 00513831480 Page: 2 Date Filed: 01/11/2017 No. 16-20328 But on appeal, Bayview now concedes that “jurisdiction is not established on the record before the court.” Specifically, the record fails to provide enough information to determine whether complete diversity exists between the parties. There is no dispute that Smitherman is a citizen of Texas, but Bayview’s citizenship is unclear. The citizenship of a limited liability company such as Bayview is “determined by the citizenship of all of its members.” Tewari De-Ox Sys., Inc. v. Mountain States/Rosen, L.L.C., 757 F.3d 481, 483 (5th Cir. 2014) (citing Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008)). Bayview’s sole member is Bayview Asset Management, LLC, which is itself a limited liability company with “multiple members that are limited liability companies.” Bayview concedes “that the current record neither identifies nor establishes the citizenship of all of those sub members at the time of removal.” If any of those members was a citizen of Texas at the time of removal, complete diversity would be destroyed. Accordingly, we order a limited REMAND to the district court to permit supplementation of the record and to make findings regarding Bayview’s citizenship. After the district court has made these determinations, the district court’s amended opinion shall return to this panel for appropriate action. We retain jurisdiction during the pendency of the limited remand. Wheeler v. City of Columbus, 686 F.2d 1144, 1154 (5th Cir. 1982). 2
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